Tade Aluko V. Emmanuel Olugbenga Ajiboye (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment)

This appeal is against the judgment of M. O. Abodunde, J of the High Court of Ekiti State, delivered on 30th March, 2009. The respondent was the plaintiff before the trial court. The plaintiff’s claim before the trial court is as follows:

i. ” One million naira being general damages for trespass committed and still being committed by the defendant on plaintiff’s land situated at Odunro family land off Iworoko Road, Ado – Ekiti covered by survey plan No. JAO/OD/223/95.

ii. An order of perpetual injunction restraining the defendant his agents, servants or privies from going to the said land or doing anything whatsoever on same.”

The appellant as defendant also counter claimed against the respondent and prayed for the following reliefs:

a. “The sum of five million naira only as general damages for the continued act of trespass on defendant’s land by the plaintiff which land is lying, being and situate at the Odunro family land off Iworoko Road, Ekiti State.

b. An order of perpetual injunction restraining the plaintiff his agents, privies and assigns from further committing any act of trespass on the said land now and henceforth.”

It was contended by the appellant that, without the leave of the lower court the respondent filed his reply to the statement of defence and counter claim out of time on 22nd February, 2007.

The case of the respondent as plaintiff was that the land in dispute originally belonged to the Odunro family of Ado Ekiti from whom Mr. and Mrs. Afolabi Oye purchased same in 1985. They sold the land in dispute to the plaintiff in 1995 and the land was surveyed the same year by the respondent’s surveyor. In 1999 the respondent applied for the certificate of occupancy in respect of the land in dispute. The Director of Lands Services Ekiti State issued a public Notice to that effect, calling for any objection against the issuance of the certificate of occupancy to the respondent in respect of the land in dispute; vide Nigerian Tribune of Monday 29th November, 1999. There was no objection to the respondent’s application. The Respondent made out that he had been exercising various acts of ownership on the land in dispute without any hindrance until 3rd May, 2006 when the respondent’s brother and his attorney visited the land in dispute and saw people working on the land. The Respondent’s investigation later revealed that it was the appellant who took the workmen to the land in dispute.

The appellant was said to have continued working on the land despite the “Stop Work Notice” pasted on the building under construction, by the Director of Urban and Regional Planning, Ekiti State at the instance of the respondent. On the failure of the appellant to stop work as directed, the respondent instituted this action.

With the appellant as defendant and counter claimant, his case was that the land in dispute was sold to him by the Odunro family, the original owner of the land in dispute in 2006, forty years after the said family sold to same Mr.. and Mrs. Afolabi Oye.

A member of the Odunro family testified on behalf of the appellant, who admitted that the former head of his family sold some plots of land.

On 24th July 2007, when the matter came up for hearing, learned counsel to the defendant withdrew his appearance with the leave of court and the matter proceeded to hearing the same day.

At the close of trial, the trial court found the appellant liable for trespass, restrained the appellant perpetually from further acts of trespass on the land in dispute while dismissing the appellant’s counter claim.